Scarce Solutions

“The game is rigged. But you cannot lose if you do not play.”
— Marie Daniels

Judges are careful people, and it’s always an interesting moment when they say things they don’t need to say. At a district court hearing on Tuesday, Judge William Young ruled that researchers Ed Moloney and Anthony McIntyre do not have legal standing to sue Attorney General Eric Holder and a federal prosecutor in Boston who has sought to enforce subpoenas for confidential archival materials on paramilitary organizations that were active in Northern Ireland during the Troubles.

That closed the matter: no lawsuit could be sustained. The end. Pending resolution of an appeal, the DOJ will ultimately receive all or part of the interviews that eight former IRA members granted to the Belfast Project at Boston College, despite assurances that the interviews would be kept secret as long as they were alive. They will pass those interviews along to police in the UK for political theater against enemies of the British state, in the matter of a forty year-old murder that no one had ever bothered to seriously investigate before. (BC immediately surrendered a ninth set of interviews to the government last year, as the interviewee’s death had mooted the promise of confidentiality.)

But then the judge kept talking. After issuing his ruling, Young added his assurances that he would have sided with the Department of Justice on the merits, had the case ever reached that point. Holder, he concluded, had properly performed the balancing test required of him by a legal assistance treaty between the US and the UK; the subpoenas the DOJ sought on behalf of the British government were appropriate and reasonable.

Place this unneeded revelation against Young’s statements, during the hearing, about the project Moloney and McIntyre undertook to interview people who fought in a long, low-grade civil war: “I’ve read thousands of pages of the transcripts. This was a bona fide academic exercise of considerable intellectual merit.”

Young also conceded the threat the subpoenas present to oral history, the importance and value of which he readily acknowledged.

Here, in a ten-minute discussion, are the challenges academic researchers face in court when they study topics and organizations that anger the state. The judge says that the specific research is legitimate and valuable, that academic research is generally important and deserving of protection, that individual researchers have no standing to contest subpoenas of archived material that their institutions fail to defend, and that a third of a protected and politically explosive archival collection must be surrendered to a government that ignored the crime at hand for several decades.

Put that a little more simply: in court, controversial research is not protected from government intrusion. When the government claims to be seriously investigating major crimes, however implausibly, researchers will not win. The judge is not on your side, and under those circumstances cannot ever be expected to be.

Nor do academic researchers have protection in the wisdom of the executive branch agencies that pursue these subpoenas in the first place. As I’ve argued many, many, many times, the Boston College subpoenas serve a nakedly political inquisition into enemies of the British state. It is not a murder investigation in any usual sense, despite the unrelentingly obtuse efforts of federal prosecutors to understand it on those terms. A government lawyer is a bureaucrat, a blunt object in a suit, and would subpoena a milkshake if someone told him to. (And then stand in the hallway outside the courtroom and make solemn statements to the credulous press about the centrality of Defendant Milkshake to the gravest evils of our time.) As with most things in our historical moment, you cannot trust government institutions to be smart or careful or reasonable. They are broken. They exist to serve their own interests.

But there is a solution. It’s ugly, costly, and painful, but a solution nevertheless.

In 1993, Rik Scarce was a PhD candidate at Washington State University, where he researched radical environmentalist and animal rights groups. After an attack on a university animal research lab, Scarce was subpoenaed to appear before a federal grand jury and testify about his personal discussions with members of the Animal Liberation Front. He refused to offer that testimony, prompting a federal judge to jail him for contempt. The judge gave up 159 days later, and ordered Scarce’s release. He never talked.

I didn’t know about Rik Scarce until recently, when Anthony McIntyre brought to my attention a 2001 article by John Lowman and Ted Palys, “The Ethics and Law of Confidentiality in Criminal Justice Research: A Comparison of Canada and the United States.” Lowman and Palys identify several instances in which academic researchers and institutions have simply refused to cooperate with police and prosecutorial trespass on research.

Among the most striking incidents was the FBI’s efforts to obtain research material from the Kinsey Institute at Indiana University. The institute signaled that they would not comply with a subpoena, forcing the FBI to consider what steps they would take to enforce it. The refusal to cooperate ended the threat. As Lowman and Palys wrote, “The FBI withdrew when members of the Institute made it clear that, regardless of the legal consequences, they would not release confidential research information.”

Lowman and Palys describe the “general response of researchers to threats to confidentiality from the third parties, be they agents of the state or private litigants,” with three words: “resistance, resistance, resistance.” (If they update the article, they’ll have to add a fourth word for Boston College, breaking the pattern.) Their article is important reading, suggesting ways to design and conduct research in the first place and to defend it in court when a subpoena arrives. If you’ve followed the BC subpoenas closely, and care about the problems that those subpoenas suggest, it will be well worth your time to read it.

But the final lesson I took away from Lowman and Palys is the same lesson I got from the federal court hearing this week: at some point it simply becomes necessary to refuse, and to pay for the refusal. Ted Folkman, a Boston lawyer who has followed the BC subpoenas with close attention, recently took up this very question:

“[T]he subpoena recipient is Boston College itself, not an individual. There are certainly cases where an individual’s professional ethics require the individual to refuse to comply with a subpoena even if the subpoena is enforceable. Thus reporters are prepared to go to jail to protect confidential sources. But does it make sense to ask an organization such as a major college to do likewise? I think not, because institutions have responsibilities to many people, not just to a single constituency.”

My conclusion this week, after watching the court make sausage, is just the opposite. Institutions that sponsor research need to protect that research, or they’ll become hollow shells that only host projects safe enough to never need protection.

Academic researchers, and the institutions that house them, cannot comply with subpoenas if doing so betrays and endangers research subjects. They need to break the law.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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